"There are significant litigation risks attendant to proceeding with the joint conspiracy charge as a separate and standalone offense in the subject case," Martins wrote. "It is no longer advisable to do so."

Some language in Martins's memo indicates he feels empowered to act to adjust the charges even if MacDonald fails to do so. Martins wrote of "the continuing, separate and independent responsibilities of prosecutor and convening authority to work to eliminate charges that may be infirm or are otherwise inadvisable to bring to trial."

Martins's memo was attached to a filing he made with the military commission on Jan. 16. and released Friday following a security review. MacDonald's one-page Jan. 17 memo denying Martins's request was also released Friday as an attachment to another filing (posted here). However, the marginally legible copy sheds no light on MacDonald's rationale beyond what the Pentagon said last week, when officials declined to release what they called an "internal" document.

A hearing on the case, often known by the name of key defendant Khalid Sheikh Mohammed, is set for early next week. However, the military judge is not expected to take up the issue of the conspiracy charge until a subsequent session.